Appeal against the dismissal of
an application in the High Court – non-joinder of party having
a direct and substantial interest
in the outcome of the application –
appeal allowed with costs – order directing further
proceedings.

JUDGMENT

SMALBERGER, JA

[1] The appellant
(fifth respondent in the court a quo)
appeals against a decision of the High Court (Chaka-Makhooane J)
granting certain relief to the first respondent (applicant in
the
court a quo) against
the appellant and various other respondents. The nature of such
relief will appear more fully below. For the sake of convenience,
and
in order to avoid unnecessary confusion, I propose to refer to the
parties as in the court below. To further facilitate the
reading of
this judgment I set out their details:

‘Maliteboho Ramokone
Applicant

Thotholane Matsie First
Respondent

Kahlolo Petlane Second
Respondent

St. John’s High
School-Mafeteng Third Respondent

School Governing Board –
St.

John’s High School Fourth
Respondent

Educational Secretary ACL

Church Schools Fifth Respondent

Minister of Education and

Training Sixth Respondent

Attorney General Seventh
Respondent

[2] In terms of
section 22 (1) of the Education Act 10 of 1995 (“the Act”),
every post-primary school shall be managed
by a School Board
appointed by the proprietor. In terms of the definition section of
the Act (section 2), a “post-primary
school” includes a
high school, and a “proprietor” in relation to a school
includes a church by which a school
is established. In terms of
section 22 (2) of the Act the appointment of a member of the School
Board shall be subject to the approval
of the Minister responsible
for education. Section 22 (3) provides that the School Board shall
consist of, inter alia,
two representatives of the proprietor, one of whom shall be the
Chairperson. A member of the School Board holds office for a period
of three years and is eligible for reappointment.

[3] It is common
cause that in 2004 the applicant was duly nominated, approved and
appointed in terms of the Act as a proprietor’s
representative
of the School Board of St. John’s High School (the fourth
respondent). She was also appointed the Chairperson
of the School
Board. Her term of office was due to expire in December 2007. It is
also common cause that at all relevant times
the Anglican Church of
Lesotho (acting through its duly appointed representatives) has been
the proprietor of St. John’s
High School. I shall refer to the
Anglican Church of Lesotho as “the Church” or “the
proprietor” as best
suits the context.

[4] On 19 May 2008
the Minister of Education and Training (the sixth respondent) (“the
Minister”) purported to reappoint
the applicant as the
proprietor’s representative and Chairperson of the School
Board. One Mr. Sarele Moremi was appointed
as the other
representative of the proprietor. The circumstances regarding the
reappointment of the applicant, and its validity,
are in dispute.

[5] On 2 June 2009
the proprietor, with the approval of the Minister, purported to
revoke the appointment of the applicant and Mr.
Moremi by replacing
them as the proprietor’s representatives with the first and
second respondents respectively. The rest
of the representatives of
the School Board remained the same. Consequent thereon the applicant
sought an order against the respondents
in the following terms:

“(a) Interdicting and
restraining 4th,
5th
and 6th
respondents from recognizing and dealing or working with 1st
and 2nd
respondents as the proprietor’s representatives on running and
governing of the 3rd
respondent herein pending the final determination of this
application.

(b) Interdicting and
restraining 1st and 2nd respondents from
holding themselves out as the proprietor’s representatives and
members of the 4th respondent herein pending finalization
hereof.

(c) Declaring the nomination,
appointment and approval of the 1st and 2nd
respondents as the proprietor’s representatives in the 3rd
respondent’s School Governing Board as null and void and with
no force or effect.

(d) Ordering and directing the
respondents to pay the costs hereof.

(e) Granting applicant herein
such further and / or alternative relief as this Honourable Court
deems fit.”

The application
was opposed by the first, second and fifth respondents. Answering and
replying affidavits were duly filed, and the
matter argued before the
learned judge. She ultimately granted the orders sought in (a) to (d)
above. Hence the present appeal
by the fifth respondent.

[6] In Theko
and Others v Morojele and Others LAC
(2000-2004) 302 at 312B and 312G-H Ramodibedi JA (as he then was)
said the following in relation to the relevant provisions
of the Act
(although the Court was there dealing with section 17 of the Act, its
provisions are in effect identical to those of
section 22 save that
the former section deals with Management Committees and the latter
with School Boards):

“In my view, it requires
to be emphasised that appointment of the Management Committees is the
prerogative of the proprietor with
the approval of the Minister.”

……..

“The fact that some of
the appointees of the proprietor undergo an election process before
being so appointed does not detract from
the fact that it is the
proprietor who is empowered to make appointments, albeit with the
approval of the Minister.”

[7] From what has
been said above it is evident that a proprietor plays a pivotal role
in the appointment of members of a School
Board, and more
particularly his representatives. Moreover a proprietor would
normally be expected to play a role in events which
might lead to the
revocation or premature termination of their appointments. In the
circumstances the Church, as proprietor, clearly
had a direct and
substantial interest in the orders sought by the applicant in the
court a quo, and should have been joined in the application
(Amalgamated Engineering Union v Minister of Labour 1949 (3)
SA 637 (AD)). It is common cause that it was not joined. The fifth
respondent is no more than a functionary of the Church
appointed by
it to perform the tasks entrusted to him in terms of section 24 (3)
of the Act and is clearly someone distinct from
the proprietor in
terms of the Act (see Theko and Others v Morojele and Others
(supra) at 311C-E). In passing it should be noted that this Court
has in the past expressed its concern about, and strongly deprecated,
the practice of non-joinder of interested parties (Lesotho
National Olympic Committee and Others v Morolong LAC (2000 –
2004) 449 at 455D to 456B).

[8] Issues of
non-joinder and misjoinder were raised in the court a quo, in
particular in relation to the proprietor. In dismissing them the
judge a quo appears to have overlooked the position of the
proprietor, as she failed to deal specifically with it. As pointed
out above, the
proprietor had a direct and substantial interest in
the orders the court a quo was asked to make, and should
therefore have been joined in the application. The judge a quo
should have acknowledged that fact and should have made an
appropriate order with regard to the further conduct of the
proceedings.
The upshot of this is that the appeal falls to be
allowed on this narrow point and this Court will have to substitute
for the court
a quo’s order granting the application the
order which that court should have made in the circumstances.

[9] The notice of
appeal in the present matter also addresses the issue of non-joinder
of individual members of the fourth respondent,
alternatively, what
is referred to in the notice as the “respective Boards”.
There can in my view only be one legal
entity that constitutes the
School Board, and such entity has been joined as the fourth
respondent. Who the validly appointed members
of the fourth
respondent are is a different matter. As far as the individual
members are concerned, the composition of the School
Boards
purportedly appointed on 19 May 2008 and 1 June 2009 respectively
correspond except for the applicant, Mr. Moremi and the
first and
second respondents. Apart perhaps from Mr. Moremi, there was in the
circumstances no need to join the other individual
members. Mr.
Moremi appears not to have taken issue with the fact that he has been
replaced. In any event, any interest he might
have in the application
is one he largely shares with the applicant. In the circumstances his
omission as a party does not, in
substance, constitute non-joinder.
It might, however, obviate all doubt if he were to be given notice of
the application.

[10] In the result
the appeal must succeed in regard to the issue of non-joinder. The
fifth respondent (appellant) is entitled to
his costs of appeal. The
order of the court a quo dismissing the application needs to
be set aside, and must be replaced by the order it should have made
had it upheld the plea
of misjoinder. The costs in the court a quo
should stand over for later decision.

[11] It is
unfortunate that there should be an unseemly wrangle in regard to the
management of St. John’s High School, something
which is
potentially detrimental to all concerned, particularly to the
efficient functioning of the school and the interests of
its pupils.
It is to be hoped that the parties will make a serious and concerted
attempt to resolve their differences amicably
and sensibly.

[12] The following
order is made:

The appeal is
allowed, with costs.

The order of the
court a quo is set aside and there is substituted in its
stead the following order:

The applicant is
directed to take the necessary steps to join the Anglican Church of
Lesotho (“the Church”) as a
party to the application
within seven (7) days and to serve on it a copy of all the papers
comprising the application.

The Church is to
file its answering affidavit within fourteen (14) days of the
service upon it of the documents referred to
in (a) above.

The applicant
may file a replying affidavit within seven (7) days of receipt of
the Church’s answering affidavit.

The application
may thereafter be set down for hearing by any party on notice to
all other parties.

The costs of the
application are to stand over for decision later.

The application
is to be heard by a judge of the High Court other than the judge who
originally decided the application.

The Registrar or
the judge to whom the application is assigned, as the case may be,
is requested to afford priority to the hearing
of the application
due to its exigency.

A failure by the
first respondent (applicant) to act in terms of paragraph 2(a) above
will result in the dismissal of the application,
with costs.